Houston Baptist University (HBU) and two of its co-plaintiffs have petitioned the Supreme Court for certiorari, seeking to overturn the decision of the Fifth Circuit Court of Appeals rejecting their challenge to HHS regulations requiring coverage of all FDA-approved contraceptives as a violation of the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §2000bb et seq.) (see Mandate withstands religious challenge, providing contraceptives has “nothing to do with it,” Health Reform WK-EDGE, June 22, 2015). The petitioners contend that: (1) the Court of Appeals incorrectly applied RFRA by “second-guessing” their belief that executing a form and submitting it to the government would make them complicit in their employees’ potential use of birth control methods that are abortifacients; and (2) the decision is inconsistent with the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc.

The petitioners

HBU and East Texas Baptist University (ETBU) are universities affiliated with the Baptist General Convention. Westminster Theological Seminary (WTS) is run by Presbyterian elders and educates people preparing for Christian ministry but is not affiliated with any one denomination or church; its legal status disqualifies it from exemption from the preventive services mandate as an independent auxiliary of a church. All three institutions contend that they provide generous health benefits for their employees but have never covered four FDA-approved methods of contraception that prevent the implantation of a fertilized egg; they consider such methods to be abortion.

Self-certification

The challenged regulations require religious organizations that are not recognized as churches under the tax code to attest to their religious objections by completing a form, which they must submit to the government and their insurer or third party administrator (TPA). The form legally authorizes the insurer or TPA to provide coverage of the alleged abortifacients to their employees. The petitioners believe that execution of the form is closely connected with the coverage; the coverage is not provided unless or until they execute the form.

The trial court granted summary judgment to the petitioners, ruling that self-certification under the HHS regulations substantially burdened the exercise of religion. It rejected the government’s arguments that: (1) any burden was so slight as to be de minimis; and (2) the connection between the certification and the employee’s use of the abortifacients was too attenuated because independent actions by others had to occur.

The trial court also ruled that requiring the certification was not the least restrictive means available to achieve the government’s compelling interests in preventing unwanted pregnancies, as RFRA requires. For example, the government could provide free emergency contraception at clinics.

Why take this case?

The petitioners stressed that the Supreme Court should hear this case because they would actually face onerous penalties if they refused to self-certify. The trial court had already entered final judgment. The Court had already stayed other rulings by courts of appeals pending its review.

There already are other petitions for certiorari pending involving the same issues and decisions by the D.C. Circuit and the Sixth Circuit (see Demanding a better answer, Catholics ask SCOTUS for review, Health Reform WK-EDGE, July 1, 2015; ACA’s contraceptive coverage provisions may not provide sufficient protection, Health Reform WK-EDGE, April 27, 2015).

The Roman Catholic Archdiocese of Washington, District of Columbia, filed a petition for writ of certiorari with the Supreme Court, asking whether the Religious Freedom Restoration Act (RFRA) “allows the Government to force objecting religious nonprofit organizations to violate their beliefs by offering health plans with ‘seamless’ access to coverage for contraceptives, abortifacients, and sterilization.” The Archdiocese and affiliated organizations object to the contraception mandate in the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148).

Background

The ACA requires health insurance coverage to include preventive care without cost-sharing; preventive care for women is defined to include all FDA-approved contraceptives, which the Catholic Church views as immoral. The regulations implementing the ACA allow religious employers to self-certify their objection to providing some or all contraceptive coverage. Once an employer has completed the self-certification, a third party—the employer’s group insurance provider or self-insurance administrator—provides that coverage to members of the health plan.

The Archdiocese filed suit against HHS, claiming that the act of self-certifying, in and of itself, is a substantial burden on the exercise of its religion. The trial court determined that elements of the contraceptive mandate violated a Thomas Aquinas College’s religious rights under RFRA, because the private Catholic college is self-insured, but that the rights of the Archdiocese and its related organizations were adequately protected by the act of self-certification (see Religious freedom rights of catholic college violated by contraceptive mandate, Health Reform WK-EDGE, December 31, 2013).

The Archdiocese appealed the District Court’s decision, and the D.C. Circuit consolidated its claims with those of Priests for Life. The appeals court was not convinced that self-certification truly imposed a significant burden on the religious organizations, saying, “That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraception services, and they remain free to condemn contraception in the clearest terms” (see ‘Minimal paperwork’ fails to meet substantial burden test for contraceptive coverage, Health Reform WK-EDGE, November 19, 2014). Unsatisfied, the religious groups requested a rehearing en banc, which the court denied, saying that the Catholics’ claims are “based on sincere but erroneous assertions about how federal law works” (see We’ve heard enough: court draws the line at accommodation, denies rehearing, Health Reform WK-EDGE, May 27, 2015).

Petition

According to their petition, the ACA compels the Archdiocese to “contract with third parties that will provide or procure the objectionable coverage” and to submit documentation that makes the Archdiocese “complicit in the delivery of such coverage.” Therefore, the petition says that the only issue in the case is “whether the Government can commandeer Petitioners and their health plans as vehicles for delivering abortifacient and contraceptive coverage in violation of their religion.” The petitioners note that their belief that some contraceptive methods can induce an abortion, specifically mentioning Plan B® and ella®—two emergency contraception, or “morning after,” pills that prevent ovulation, fertilization, and implantation of a fertilized egg. The manufacturers explicitly deny that emergency contraception is an abortifacient, and state that neither Plan B nor ella will interfere with an existing pregnancy. The Archdiocese is requesting a full exemption from the contraception mandate.

The Supreme Court has declined a request by Roman Catholic colleges, charities, and non-profits in Pennsylvania to delay enforcement of a ruling by the Third Circuit in the groups’ challenge of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) contraceptive mandate. In its order, the Court stressed that women employed by or students of the religious organizations may continue receiving all FDA-approved contraceptives without cost sharing, facilitated and reimbursed by the government.

Background

The Most Reverend David A. Zubik, Bishop of the Roman Catholic Diocese of Pittsburgh, along with the Diocese and Catholic Charities of the Diocese of Pittsburgh, Inc. (collectively, the Diocese) alleged that the contraception mandate violated the organizations’ rights under the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §§2000bb et seq.). In 2013, a federal district court in Pennsylvania granted them a preliminary injunction against enforcement of the mandate (see Catholic dioceses granted preliminary injunction, Health Law Daily, November 26, 2013). In April 2015, the Court put a temporary hold on the Third Circuit’s ruling until further legal papers were filed (see Alito stymies Third Circuit, temporarily blocks enforcement of mandate, Health Reform WK-EDGE, April 22, 2015).

Order

The order will allow the Third Circuit’s ruling to go into effect but sets forth two requirements until the Court decides what to do: (1) religious groups must provide notice to HHS if they want and are entitled to a religious exemption from the contraceptive mandate, and the government may not enforce the mandate directly against them; and (2) women who are employed by or are students at the religious organization are assured to have access with no cost-sharing, facilitated and reimbursed by the government, to birth control methods and devices approved by the FDA.

This order does not contain a ruling of whether the Third Circuit’s decision was correct, a determination which will be undertaken if the Court grants certiorari.

Sotomayor

Justice Sonia Sotomayor included a note that she would have denied any application for an order affecting the Third Circuit’s ruling.

A significant number of people in same-sex relationships gained employer-sponsored insurance (ESI) coverage as a result of the implementation of the New York Marriage Equality Act, according to an article published in the Journal of the American Medical Association (JAMA) on June 26, 2015. There also was a small reduction in the number of individuals on Medicaid. Based on these findings, the author anticipates that the Supreme Court decision in Obergefell v. Hodges mandating marriage equality will reduce the number of uninsured nationwide.

Methodology

The author, Gilbert Gonzales of the University of Minnesota School of Health, Division of Health Policy and Management, used data from the American Community Survey, an annual mail survey conducted by the U.S. Census Bureau. Same-sex couples were identified when the primary respondent to the survey indicated that his or her spouse or domestic partner was a person of the same sex. He compared the rate of ESI coverage among same-sex couples to that of opposite-sex married couples in New York from 2008 through 2010, before enactment of the statute, to coverage in 2012. New York began to issue marriage licenses to same sex-couples on July 24, 2011.

The respondent for each household identified the source of insurance coverage for each member of the household. The responses were sorted into Medicare, coverage through a current or former employer, TRICARE or other military health care, coverage purchased directly from the insurance company, Medicaid, and uninsured.

Insurance trends in general

Before enactment of the law, rates of coverage were dropping slowly for both groups. In 2012, there was a 6.3 percent increase in ESI among men in same-sex relationships, while Medicaid coverage dropped 2.2 percent. Among women in same-sex relationships, there was an 8.9 percent rise in ESI and a 3.9 percent drop in Medicaid enrollment. The trends in rates of ESI coverage among opposite-sex couples did not change.